Our guest in this episode is London-based King’s Counsel Ian Winter, a frequent visitor to Hong Kong where he has made his name handling high-profile financial crime cases. Ian reflects on his distinguished career and offers his thoughts on Hong Kong’s legal landscape, including rule of law, judicial standards and the important contributions being made by overseas counsel and judges. He speaks with our Senior Partner Colin Cohen.
Host: Colin Cohen
Director: Niall Donnelly
Producer and VO: Thomas Latter
[00:00:34] Colin Cohen: Ian, welcome to Law & More, and it's a great privilege to have you here. I ask all my guests, what brings you to Hong Kong and what are you doing at the moment?
[00:00:43] Ian Winter: Colin, it's an absolute pleasure to be here. Thank you for inviting me and it's great to appear on Law & More. I'm here because I'm in the Great Milk case for the third time. So we've got some hearings and we're starting to prepare the case for trial in May next year.
[00:00:56] Colin Cohen: Yes, and we do have a close connection in that case. So I tell our listeners, I'm acting for one of the defendants. And you're acting for the other defendants.
[00:01:02] Ian Winter: Indeed, I think we appeared together. With you strictly speaking, leading me, I think.
[00:01:06] Colin Cohen: I was, I was with the King's Council on my left. Yes, I was performing.
[00:01:10] Ian Winter: You were indeed. And it was magnificent. And I think I'm the first modern King's Council to be admitted in Hong Kong after the passing of the Great Queen.
[00:01:20] Colin Cohen: And just for our listeners, in the past, all QCs in the UK on the passing of her Majesty the Queen. They all morphed the next morning into King's Council.
[00:01:30] Ian Winter: Indeed, we all changed, everything. All the websites changed overnight. It was a very quick, slick operation.
[00:01:35] Colin Cohen: Yeah, that's good. Now you've been appearing in Hong Kong for many, many years and the pandemic has obviously caused difficulties in travelling. But I think you held a record for one Queens council stroke Kings Council. As I understand matters, you have done 14 days, then 21 days, and then another set of days, and then I think you were able to come this time to Hong Kong and just do the medical surveillance.
[00:01:59] Ian Winter: Exactly.
[00:02:00] Colin Cohen: How did you survive [that] time locked up?
[00:02:04] Ian Winter: Well, the first one was sort of a novelty. So it was quite bad, but it was bearable. The second one, which only happened a couple of months later was 21 days, which was really, really awful. I was stuck in a hotel that didn't appear to have had a bath for a while, and 21 days in that environment was not good.
It did gimme an insight actually into sort of solitary confinement and imprisonment and things of that nature.
[00:02:27] Colin Cohen: And I understand you kept yourself amused by playing your musical instrument.
[00:02:31] Ian Winter: Yeah, I play the sax. So I've got a tenor sax. And the one advantage of being locked up is that nobody can complain about the noise you're making.
[00:02:37] Colin Cohen: Well anyway, hopefully we've moved away. We're not like London, where I was there not too long ago, everybody's walking around, no masks. It's as if no one mentions the word Covid. But at least we're opening up. The Chief Executive gave his address yesterday. And there is movement too at least to try to get Hong Kong back to some form of normality. And we are slowly, slowly getting there.
[00:02:58] Ian Winter: Yes, I think the current Chief Executive is on the right path. He's easing it, and that's the sensible way to go forward. But strictly speaking now I think basically you have to head to a herd immunity situation and therefore the quicker you get there the better really.
And that's essentially what we've done in England. Although I read, the cases are up significantly and therefore this winter may see a return in England to some restrictions.
[00:03:19] Colin Cohen: That will be interesting. Before I talk about your very distinguished career, let's go back a bit in time to your background, your upbringing, where were you born and raised?
[00:03:28] Ian Winter: I was born in Twickenham, really under the shadow of the Great stadium, the rugby stadium. So I come from Twickenham, my parents had a small house there and that's where I went to school and was brought up there.
[00:03:40] Colin Cohen: And university?
[00:03:40] Ian Winter: Went to university in Bristol, which was a great experience.
Bristol is a great city and that was really where I formed myself as a would be Barrister. Luckily, really due to one great, great man. There's a man called John Horris who was one of the lecturers there. I think he may have seen a little bit of talent and he insisted that I debated and mooted and he really infused me to try to become a barrister.
[00:04:03] Colin Cohen: And you had no interest in becoming a solicitor at all?
[00:04:06] Ian Winter: Well, I didn't think I'd be able to be a Barrister. So I did try, the first summer vacation, I got a job in a solicitors firm. But it was way too difficult for me. So I decided to take the easier option of the bar.
[00:04:18] Colin Cohen: Well, the first time I've heard a Barrister saying that. So you were called to the Bar in 1988? Yes. And obviously, you're very seasoned today in the complex commercial crime area, but your early days at the Bar, what did you do?
[00:04:32] Ian Winter: Oh, I was incredibly lucky because before I came to the Bar, I got a scholarship to spend a bit of time in India doing effectively pupillage in Mumbai.
And there were six months before that started. So I got a job with the Crown Prosecution service in London. And in those days, for one year, they permitted you to appear in the magistrate's court. Not having done a pupillage. And after they saw me performing in the magistrate's court with no training, they immediately changed the rule and required it.
But it meant that I could have literally six months invaluable experience prosecuting in Maribo magistrate's court. And that gave me a real head start because when I started doing my pupillage, obviously I'd already done six months worth of cases. But then I did what normal criminal Barristers do, a bit of everything. Prosecuting, defending, rapes, murders, assaults, you name it, did everything. And it was really three or four years later before I got my first financial crime case. And thereafter I started to focus on that type of work.
[00:05:31] Colin Cohen: And was that just fortunate, you just fell upon the cases that came to you. You are the taxi that everyone hails down and you'd have to take anything on subject to them your availability and the fare.
[00:05:41] Ian Winter: Yes. And in those days, the Legal Aid Fare was a very generous Fare. So, literally tons of work, very well paid, great experience, and couldn't be more different for those trying to start off now.
[00:05:53] Colin Cohen: And in 2006, you took Silk. Again, that means you became the Queens Council at time. Was that a difficult decision to make or was it something that you just decided, let's have a go?
[00:06:06] Ian Winter: No, I mean, to be fair, it's the thing I always wanted to do. Having come to the Bar. I wanted to be in the front row so it was a question really of waiting for the appropriate moment. But I got impeded because Tony Blair thought about abolishing the role of Silk altogether.
And he got someone to write a report, which took three years. So for three years, they didn't make anybody a Silk at all. And therefore there was a massive cue, when he decided to carry on with it. And therefore, I was in the first set of Guinea pigs that were taken into Silk after that report.
[00:06:39] Colin Cohen: I'm very interested in your Chambers, which is the magnificent name, Cloth Fair Chambers. When did you join them and did you take Silk before you joined them?
[00:06:49] Ian Winter: No, I took Silk the year that we set that up. I'm one of the founding members of Cloth Fair. We saw the demise of the criminal legal aid bar coming and we decided that we wanted to maximize the exposure to private work.
So, six of us set up cloth fair, essentially just to do private white collar crime, which is essentially now financial and corporate crime.
[00:07:13] Colin Cohen: It's a wonderful name, Cloth Fair Chambers. Because here in Hong Kong, we're a bit boring with our chambers. There's Pacific Chambers after Pacific Place, Voeux Chambers, they're the leading ones. You have Parkside, in Pacific Place Two, where they overlook the park gilt chambers because the guilt of the golden tooth building. Tell us a little bit about that.
[00:07:29] Ian Winter: It's exactly the same because we're in a street called Cloth Fair in London, which is near the Barbican and it was in medieval times the biggest cloth market in the world.
So we have got the second oldest house that's ever been built in London, it was built in 1490. Elizabethan building, and that was one of the big cloth market centres. So we decided to name chambers after the name of the street for pretty much the same reason as your chambers here to do that.
[00:07:58] Colin Cohen: Yeah, and it is a fabulous building. Cause of course I've had the privilege of going there, meeting your clerks and of course John Kelsey Fry, who is now head of your chambers. But you two set up the chambers together.
[00:08:09] Ian Winter: We did with Nicholas Pinnell Casey, who has just step back from being head of chambers, having led us for 16 years. Kelsey has taken over, which is great. Looking forwards to the future, we've got some pretty radical ideas in mind that I can't talk about yet but we've got some ideas going forward. we need to refresh, and try and be the dynamic driving force that we've tried to be for 16, 17 years.
[00:08:32] Colin Cohen: Yes, now the lure of Hong Kong. Obviously, everyone knows about Hong Kong. Previously in the times when you became a Silk in 2006 then onwards. The admission of council into Hong Kong. And you've been fortunate in that you've done some very, very well known notable cases here. So how did you first get in? How did you get into a hearing in Hong Kong?
[00:08:54] Ian Winter: Again, I was quite lucky. It's one of the things I always wanted to do at the London Bar. If you do a case in Hong Kong, you are generally regarded as being right at the top. It's the prize to try and get. And therefore I was always keen to try and do a case here. And again, I was very lucky because Edmund Lawson, who was a great barrister and one of the founding members of Cloth Fair. Got a case here, the Simon Lai case, the China Bank fraud.. in which he did the trial and then he advised on the appeal, drafted all the grounds of appeal. And then very sadly, he passed away before the Court of Appeal hearing. And he had already been paid for the Court of Appeal hearing. So having passed away and having spent the money that there was a problem that needed a Barrister.
But there wasn't any money and so I decided to do it on the gamble, really, that A would open the door to Hong Kong and B, if I won it then I would get paid obviously from the costs coming from the Appeal Courts. And we lost in the court of appeal, but we then won in the Court of Final Appeal. And so I ended up getting handsomely paid, but also I got a lot of goodwill in Hong Kong for having helped people out without agreeing to get paid.
[00:09:58] Colin Cohen: That was a very, very well known case. It concerned a partner of a well established law firm.
And, it was really actually a bit of injustice at the very beginning cause it was the district court, got convicted. Court of appeal, then upheld it. And then the justice was done in the Court of Final Appeal with fairly robust judgements.
[00:10:16] Ian Winter: That was very interesting because it happens a lot with these financial crime cases that there can very often be a misunderstanding about what actually happened. And that was exactly what happened in that case. And I was very anxious not just to win it in the Court of Final Appeal, but also to exonerate our client.
And that's what happened in the final paragraph. They said he left without a stain on his character. And that was a very important judgment for him and also for me.
[00:10:39] Colin Cohen: Yes, and obviously that's your first appearance in the Court of Final Appeal. Your views of the court?
[00:10:44] Ian Winter: Oh, it's an exceptionally good court. I think it is an example, frankly, globally for how a Final Court of Appeal ought to operate. I've been there many times and every time I've been there, I've been extremely impressed by the quality, both of the local judges, but also of the non-permanent judges, the highest possible levels of academic brilliance and focus.
And they are intellectually, rigorously, honest. And I don't think you'll get a better court anywhere in the world.
[00:11:12] Colin Cohen: That's good to know. And I'll talk a little bit later on. I have some other points I'd like to talk about. About Hong Kong and how Hong Kong is perceived in London as well.
But for we do that. You then. A little bit before 2012, that's when I first met you. Because I got instructions in respect of the Thomas Kwok-Sung Hung Kai matter and we were going around London on a rather interesting beauty parade. And again, for our listeners, the beauty parade is whereby we all go to London to try to pick the best leaders who are gonna come out and have them admitted here in Hong Kong to do the case.
I remember meeting you at Cloth Fair, and then it turned out that in the end. My client went for Claire Montgomery, but on the other, Thomas Chan, who was one of the senior directors, needed representation and you acted for him. And then for the other Kwok brother, John Kelsey Fry, very well known, acted. So we all got together and I remember 2012, that was an interesting year.
[00:12:10] Ian Winter: Oh, that was a great year. There was a very exciting, when you have two members of chambers in a case of that size was great. And also to work with Claire Montgomery was a great privilege and working with some really brilliant juniors and great solicitors and we fought tooth and nail and unfortunately didn't quite win it, but we were very close. I think two jurors agreed with us, but we went down on a majority.
[00:12:32] Colin Cohen: Yeah, but in the end, John Kelsey Fry, he got acquitted. And then it was very close for my client as well. And then that case went all the way to the Court of Final Appeal. But again, the Court of Final Appeal took the view that the trial judge, who is a Court of Appeal judge did get it right.
[00:12:50] Ian Winter: Yeah, they said that. It was properly arguable. It was a difficult case, but ultimately they found against us and very sadly, my client passed away, I think shortly after he was released. It was a sad result.
[00:13:00] Colin Cohen: Yeah. Now you also been involved in these very high profile cases in London as well. I mean, in particular, the Barclays case or some other matters. You are a man to go for at the moment. I mean that's like you hear from all my friends.
[00:13:12] Ian Winter: I hope so, yes. The Barclays case is an absolutely fantastic case. I mean, a massive complex matter that again, I think the prosecution didn't see the reality of what had been happening. They were bedevilled by very serious corporate law problems. And they lost the company and then they lost everybody in the end. So it was a fantastic case to be in. I've just done Tesco as well, and I'm in two quite complicated at the moment, one very large corruption, and then there's a procurement fraud that starts in January. So yeah, it's very busy.
But I think it's because Cloth Fair gave people the visibility over the quality of the barristers we've got there. So it does make it easier, I think, to come to Cloth Fair and get the people who are experiencing this type of work.
[00:13:54] Colin Cohen: Yes. And just again, to make it very clear to our listeners. Getting King's Council admitted in Hong Kong, it's not easy, no. You have to show that A, there is a case [that] warrants a need. That it's gonna be in the interest of Hong Kong. The issues are difficult and complex and it'll assist the jurisprudence here in Hong Kong as well as assisting the local bar and adding that extra dimension.
Getting the King's Council in always requires a considerable amount of hard work by the solicitors to convince the courts. But on the other hand, there is, the Chief Judge and the Chief Justice. It always has made it clear having visiting counsel enhances and strengthens Hong Kong's position as an international dispute resolution centre, et cetera, et cetera.
[00:14:38] Ian Winter: It does. They're absolutely right about that and I think when you are a small jurisdiction, whether someone's Hong Kong, or English that's not the issue. It's that Hong Kong is a very small jurisdiction and therefore the pool of experience, without foreign people coming in is very small. Whereas England obviously is a very large center of jurisprudence. We therefore have a lot of experience, and I can draw from the experience of other Barristers in London in the way I hope here people can draw on my experience and therefore it's benefiting everybody.
[00:15:09] Colin Cohen: and it strengthens the local Bar and health and, and especially the juniors. Now there's one area which I do want to ask you about, and it's been in the press quite a lot. That there's been a lot of publicity back in England regarding the strike by the junior Barristers, especially in the criminal Bar where they have been on strike. And lots of cases, people have been released on bail because there's limits where your bail is limited in a time under legislation.
Can you tell us a little bit more about that? I understand it's maybe being resolved, but all of this goes back to the fact that the legal aid system collapsed and they weren't paying properly.
[00:15:44] Ian Winter: No, I mean, when I started in the late eighties, you could earn a lot of money on legal aid. The Silks in those days were earning into seven figures on pounds on legal aid. And that's a lot of money to be earning from the public purse. And Tony Blair, I think rightly, decided to bring an end to that. But wrongly thereafter, having frozen the legal aid rates and having slashed a lot of them, they have never been raised since then.
So for more than 20 years, they've been cut and cut and cut and you've ended up now with people coming to the criminal legal aid Bar who are earning less than the minimum wage. I mean literally 15,000 pounds a year, and that's before you have to pay for your train fare to go to court and all the rest of it.
And so these people, they play a massively important role in society. They are being paid at pittance. And I can understand, personally I think striking is not the way to deal with it. But I can well understand why they are very upset about it. And, they have reached an agreement, as I understand it with the government for a small increase, not what they were asking for, but hopefully going forward people can focus in on the importance of the role that these Barristers are playing in society.
[00:16:54] Colin Cohen: And it really shows how good in Hong Kong our legal aid system is. Because basically you will get legal aid in a criminal matter, and the pay is not the best ever, but it is sufficient and it enables a young Barrister to cut their teeth in quite some important cases.
[00:17:11] Ian Winter: Indeed, I couldn't agree with you more, Colin and I think the problem in London now is that we are finding. It's difficult to recruit because Barristers are not getting that day in, day out experience of trial advocacy because that sort of work is not supporting the junior Bar.
[00:17:29] Colin Cohen: Yeah, on a slightly less serious note. I was sort of reading up and following about, but you are a star actor and you performed at a very well known theatre with Lady Hallet was with Judge and it was all concerning the trial with King Richard. Tell us a little bit more about that.
[00:17:45] Ian Winter: Well, I've always enjoyed a bit of amateur theatre. I did the Edinburgh Festival when I was at University three times, and so I've always been involved in that. But this was a charity to raise money for the Shakespeare in Schools foundation, which is brilliant charity that gets largely inner city children performing in Shakespeare Productions. And it brings children together, it brings children out of their box, it helps children with problems. And we put on a mock trial of Richard the Third. And I was prosecuting him, Kelsey Fry was defending, but essentially it's a bit of amateur improvised dramatics. Try and make people laugh and give people enjoyable night at the theatre and raise some money for a good charity.
[00:18:26] Colin Cohen: And I read the review. The winners were not the lawyers, they were the children.
[00:18:29] Ian Winter: The children are definitely the winners, yes.
[00:18:31] Colin Cohen: Which is good. Now, I also understand from a very good source. I mean I'll tell you his name, Matthew Marsh, that you have a little passion in cars and motorbikes.
[00:18:39] Ian Winter: Yeah, well I like sports cars. When I was younger, I did three international rallies in a 1967 Porsche 911, which we drove from London to Sydney and London to Acapulco, and then from Panama to Alaska there sort of 20,000 mile experiences, which were unbelievably good fun, very exciting, quite dangerous. And I have a passion for particularly classic sports cars.
[00:19:06] Colin Cohen: F1?
[00:19:07] Ian Winter: Yeah, I've been to a lot of F1, not as many times as you have Colin. Yeah, I've been to many F1s. I mean F1 now, I find it's less exciting. It seems to me that there are some problems now with how to make that type of racing a good sport to watch. But that's why I prefer the rallying cause it's less predictable. You're off roads, so the roads are slippery. And obviously there's the ditch, which is uncomfortably close quite often.
[00:19:30] Colin Cohen: Yeah. And you're still continuing that passion?
[00:19:33] Ian Winter: Oh yes. Yeah. Yes.
[00:19:34] Colin Cohen: That's good. Now back to sort of legal matters. You've been coming to Hong Kong for many, many years. You've seen the tensions here. I recollect that when we were doing the Kwok trial, there were the Sit-ins, the protests and all the rest, and that morphed into something far more serious. We have the elephant in the room is the National Security Law, we have changes in concepts as well. How do you view Hong Kong at the moment? You've been in the courts, you've seen it all. What's your view?
[00:20:03] Ian Winter: Well, I'm very excited. I think Hong Kong is an absolutely fantastic city. I think it is full of very talented, motivated, driven people. I'm very optimistic for the future. Personally, I don't do NSL type work. So not an area that I'm able to speak about.
I do financial crime. I've just been admitted to do the next biggest financial crime case in the city. Therefore, it seems to me Hong Kong has got a glittering future going forward. And I'm very positive. I think one of the areas that the legal profession might want to look at is the dearth frankly of criminal Senior Council here. There are lots of very able civil senior council, but we are short here on criminal senior council, and I think some effort needs to be put in there to bring Barristers on into Senior Council roles from which of course the judiciary is drawn.
And it's very important, I think, to have a strong, independent judiciary that you have a strong independent Bar, which involves promoting people through into the senior levels of the Bar. And they're a little short. I mean, there are some very good people. I work with a lot of them, but there aren't very many. And there needs to be more, I think.
[00:21:12] Colin Cohen: Yeah, now, you've appeared before the Court of First Instance. You've been before the Court of Appeal. You've been before the Court of Final Appeal over these last years. The rule of law, how do you see this in Hong Kong?
[00:21:22] Ian Winter: Strong, robust, some excellent judges here, particularly at the senior levels.
And this is a country fundamentally based in the rule of law. It's fundamentally based in the basic law. And that is the thing that has guaranteed Hong Kong its strength, particularly its commercial strength, because people who are involved in commerce need to know that they have access to high quality judges, which they most certainly do in this country.
[00:21:47] Colin Cohen: Good, I'm very pleased to see that. Now, let's be a little bit controversial. We've seen two Supreme Court judges. I think it's the politics have resigned from the Court of Final Appeal, and yet others like Lord Sumption and others have said, No, no, no. We have our faith in it. We wish to continue being here in Hong Kong.
Your take on that?
[00:22:07] Ian Winter: I'm very much in the Sumption camp there. I think it is of critical importance that high quality judges like him, sit on the Court of Final Appeal here. Every time I've appeared there, the foreign judge has always been of the highest quality and whether giving the judgment or not has obviously helped with the input into the decision making.
And it seems to me that the political decision taken by Dominic Raab, I think the wrong decision. I don't think he should have put the pressure on the sitting judges to take the stance they took. I think the involvement of Sumption in this court is to everybody's benefit.
[00:22:42] Colin Cohen: Yes. And is there pressure, do you think in the UK, to say Oh, why are you coming to Hong Kong? Do you have peoples tried to raise that flag?
[00:22:51] Ian Winter: No, they haven't criticized me. I mean, they have criticized one other Barrister who I know very well, good friend of mine who I think was very unfairly criticized for agreeing to prosecute a case because I don't prosecute anymore.
I doubt that anyone would be critical of coming to defend in Hong Kong. I can't imagine anyone will be critical of defending the kind of cases I do. And it did seem to me to be a wholly unfair criticism to criticize someone for prosecuting. Frankly, if you're defending it in a case, it needs to be prosecuted and it needs to be prosecuted fairly and well.
And he most certainly would've done that and therefore it seemed to me to be a very unfair criticism
[00:23:26] Colin Cohen: Yeah, but what is good news is this, and there was a case. A judgment that came out yesterday by the Chief Judge. It concerns a very good friend, Tim Owen, who's appearing in the Dairy Farm case, which will be doing battle next year.
And they did it on the papers. The Barr opposed his admission, this is the Jimmy Lai case, National Security Law. The Secretary of Justice, again opposed the admission on some grounds that it wasn't very complicated and yet a very robust judgment came out yesterday by the Chief Judge, which clearly said this is going to enhance and develop Hong Kong legal system, National Security Law, it's difficult, it's complex, it requires to have all the arguments before the court. Of course, Tim will be appearing before three judges. And he got admitted, which really shows that the system here is working very well and that the cross-fertilization in taking the best counsel. And in his judgment, the chief judge says that Tim Owen is one of the masters of the human rights area.
It's a very difficult area. He is the one of the experience, that must be good for Hong Kong.
[00:24:30] Ian Winter: Oh, I think it's fantastic for Hong Kong I was very pleased for Hong Kong that that decision was made. I mean, Tim is a very good friend of mine. He's a brilliant Barrister. He's a specialist in human rights law. He's one of the best in the world, in my opinion, I'm very excited that he's been admitted to do that case. I think it sends exactly the right message that Hong Kong is not frightened to have these cases robustly defended.
That's what this system, the rule of law is all about.
[00:24:54] Colin Cohen: Yes, and I'm very hopeful. We got the end of the pandemic here in Hong Kong. We're opening up slowly but surely. I hope we expect to see more of you here in Hong Kong. I know you're gonna be here for all of good part of next year.
[00:25:07] Ian Winter: Good part of next year. Yes, I'd love to come back. I love working here. I like the people here. it's a great, great city. I believe it will continue to be so, and I'm very hopeful that I can continue to appear here and get involved with these great Barristers, great solicitors and great food too.
[00:25:23] Colin Cohen: Great, Ian, a pleasure, an honour to have you here. Thank you so much for joining us on Law & More.
[00:25:29] Ian Winter: Pleasure is mine, Colin thank you very much.